Citation Nr: 0209417
Decision Date: 08/08/02 Archive Date: 08/21/02
DOCKET NO. 96-19 593 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased evaluation for
hyperthyroidism, currently rated as 10 percent disabling.
2. Entitlement to a total rating based on individual
unemployability due to the veteran's service-connected
disabilities.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
REMAND
The veteran had active military service from June 1959 to
April 1964.
This matter comes before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from rating decisions of
September 1995 and April 2000 of the Department of Veterans
Affairs (VA) Regional Office (RO), in Montgomery, Alabama.
In February 2002, a Board hearing was held in Montgomery,
Alabama, before the undersigned. A transcript of the hearing
is of record.
The veteran originally requested an increase evaluation for
his service-connected hyperthyroidism. The RO denied the
veteran's petition in September 1995, and he was notified of
that decision. He has appealed that decision, and on his VA
Form 9, he stated that he was experiencing problems with his
nerves and blood pressure. He claimed that these
"symptoms/manifestations" were related to his
hyperthyroidism. Then in January 1996, the veteran
accredited service representative asked that service
connection be granted on a secondary basis for a heart
disability and psychiatric disorder. The RO, in October
1996, granted a 10 percent rating for hyperthyroidism.
Because this was not a full grant of benefits, the veteran
continued his appeal.
Three years later, while the veteran's claim was awaiting
appellate review, the veteran applied for a total disability
rating based on individual unemployability due to the
veteran's service-connected disabilities. The veteran was
not specific as to which disabilities prevented him from
working. In conjunction with the veteran's claim, the
veteran underwent numerous examinations in January and
February 2000. The examination reports were forwarded to the
RO which, in turn, concluded that a total disability rating
based on unemployability was not warranted. VA Form 21-6796,
Rating Decision, April 5, 2000. The RO did not specifically
conclude whether service connection should be granted or
denied for a heart disability and psychiatric disorder
secondary to the veteran's hyperthyroidism (and the
medications he takes for the condition).
The United States Court of Appeals for Veterans Claims,
hereinafter the Court, has stated that VA's statutory duty to
assist includes issues raised in all documents or oral
testimony submitted prior to a Board decision, not just those
derived from a liberal reading of the appellant's substantive
appeal. "EF" v. Derwinski, 1 Vet. App. 324 (1991). The
Court has also said that where additional issues have been
raised, but not certified, which are "inextricably
intertwined," appellant action prior to development by the
originating agency of all intertwined issues would be
premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). The
Board finds that the appellant has raised the issue of
entitlement to service connection for a heart disability and
a psychiatric disorder secondary to his service-connected
hyperthyroidism which is intertwined with his claims for an
increased evaluation for hyperthyroidism and a total
disability rating based on individual unemployability due to
service-connected disabilities.
If it is determined that service connection should be awarded
for these disabilities, and a compensable evaluation assigned
thereto, there may be an effect on whether the veteran's
request for individual unemployability benefits is granted.
Thus, these issues should be further developed by the RO
prior to any further action by the Board. The issues
currently on appeal will therefore be held in abeyance
pending the resolution of the veteran's inextricably
intertwined claim for service connection.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The veteran should be given
appropriate examinations and the
examiners should give their opinions as
to whether any cardiovascular or
psychiatric disorders are proximately due
to or the result of the service-connected
thyroid disability. In providing an
opinion as to the likelihood of
relationship, it is most useful to the
Board if the examiners classify the
likelihood of relationship as
"definitely," "more likely than not,"
"as likely as not," "more likely not,"
or "definitely not."
The opinions should include a complete
rationale and a copy of this Remand must
be made available to and reviewed by the
examiners.
2. The RO should review all requested
reports and determine if they are
adequate for rating purposes and in
compliance with this remand. If they are
not, they should be returned to the
originator for supplemental action. If
the requested reports do not include
fully detailed descriptions of pathology
and all test reports, special studies or
adequate responses to the specific
opinions requested, the reports must be
returned for corrective action. 38
C.F.R. § 4.2 (2001); see also Stegall v.
West, 11 Vet. App. 268 (1998).
Following completion of the requested development, the
veteran's claim should be readjudicated. The RO should
consider the principles enunciated in Esteban v. Brown, 6
Vet. App. 259 (1994) and Allen v. Brown, 7 Vet. App. 439
(1995). The appellant and his representative are put on
notice that they have the right to submit additional evidence
and argument on the matter or matters the Board has remanded
to the regional office. Kutscherousky v. West, 12 Vet. App.
369 (1999). If the decision remains unfavorable, the veteran
and his representative should be given a supplemental
statement of the case and allowed sufficient time for a
response. Thereafter, the claim should be returned to the
Board for further consideration.
The Board expresses its appreciation in advance to the RO for
it assistance in developing the requested evidence and trusts
that it will attend to it in an expeditious manner.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).